Death Watch: Texas Set to Kill Mentally Disabled Man

As it stands – as of this posting – unless the U.S. Supreme Court intervenes to stop it, Texas tonight will execute Marvin Lee Wilson, even as advocates continue to cry foul. Indeed, Wilson is mentally retarded and execution of the mentally disabled is, in fact, unconstitutional. Unless you're in Texas – or so Texas would have it.

The U.S. Supreme Court in 2002 ruled that executing the mentally disabled violates the ban on cruel and unusual punishments. Since then, Texas has failed during several times during legislative sessions to pass a law that would codify the principles from the Supremes' decision in Atkins v. Virginia; lawmakers have instead decided to allow the state's courts to work it out. As such, the Court of Criminal Appeals came up with a set of "factors" for determining retardation – factors that advocates, including many lawyers and doctors, argue are unscientific and fail to protect all but the most severely disabled – a caste system not contemplated in the Atkins decision. Indeed, in announcing the Texas standard (in a case unrelated to Wilson's), the CCA wrote that "most Texas citizens would agree that [John] Steinbeck's Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt from execution. But does a consensus of Texas citizens agree that all persons who might legitimately qualify for assistance under the social services definition of mental retardation be exempt from an otherwise constitutional penalty."

Apparently the CCA is not concerned about its decision to eschew science in favor of literature, or to create legal tests based on fictional attributes instead of on the real-life symptoms of real people, like Wilson.

Even Steinbeck's progeny sees the error here, and has denounced the impending execution. "On behalf of the family of John Steinbeck, I am deeply troubled by today's scheduled execution of Marvin Wilson," son Thomas Steinbeck said in a statement released to reporters. "I had no idea that the great state of Texas would use a fictional character that my father created to make a point about human loyalty and dedication...as a benchmark to identify whether defendants with intellectual disability should live or die."

Wilson was sentenced to die for the 1992 murder of a police informant in Beaumont. Wilson has had one previous date with the death chamber, but it was withdrawn after the question of his mental disability was raised. Initially, the 5th U.S. Circuit Court of Appeals ruled that Wilson's claim of mental retardation couldn't be heard because his lawyer had missed a deadline for filing an appeal. That decision was widely criticized, and the appeals court ultimately reversed course, allowing the claims to be raised in federal court.

Still, Wilson has not been able to meet the burden to prove to Texas that he's too mentally deficient to be legally killed, including showing that his low IQ existed as a juvenile. His most recent IQ test – the most recent and most comprehensive one he's ever been subjected to – measured it at 61, considered "mildly" retarded. A previous full test, administered when he was 13, in 1971, measured his IQ at 73, still considered "borderline" mental retardation. In other words, the tests demonstrate Wilson is mentally deficient – but, it seems, not enough so for Texas. Wilson had been given other intelligence "tests" – including a quick-hit test on which he scored 75 – though none of them were comprehensive IQ tests, and thus not dispositive of whether Wilson is mentally deficient in the eyes of the law, says his lawyer Lee Kovarsky.

Indeed, according to affidavits provided by members of Wilson's family and from his childhood friend, it is clear that Wilson was raised in a difficult environment and has always struggled, physically, mentally, and emotionally. Wilson had trouble in school – he could barely read or write, his cousin, Beverly Walters said, and he didn't understand how to count money – even well into adulthood, said his childhood friend, Walter Kelly. Indeed, at eight years old he still didn't know his right from left, Kelly said, and he didn't understand how to properly dress himself. He was called "dummy" or "retarded" by other kids in school, Walters and Kelly said. And he sucked his thumb well into adulthood, recalled his younger sister, Kim Armstrong.

As the hour of execution draws near for Wilson, lawmakers from across Texas – including Sen. Rodney Ellis, D-Houston, and Rep. Lon Burnam, D-Fort Worth – have come out to plead for the state to stay the execution, as have newspaper editorial boards from across the country. "To take the life of a man as simple as Marvin Wilson would not be an act of justice but a violation of the U.S. Constitution and, further, an act that can never be taken back," Burnam wrote yesterday in a letter to Gov. Rick Perry (who, in 2001, vetoed an Ellis-drafted bill that would have created a measured process for determining mental deficiency in defendants eligible for the death penalty). "I ask you [to] stay his execution and let doctors, not lawyers, tell us if he understands his actions, let alone if his life should be forfeit for them."